Surrogacy is a type of assisted reproductive treatment whereby the woman who carries and gives birth to the child (the surrogate mother) agrees not to be the child’s parent, in favour of the intended parents.
Surrogacy can be straight (where the surrogate mother is both the genetic mother and the woman who carries the child) or gestational (where the surrogate mother conceives by planting in her uterus an embryo created by in vitro fertilisation).
Surrogacy can also be altruistic (where the surrogate mother is not paid at all or reimbursed exclusively for any financial losses suffered), compensated (where the parties agrees that in addition to reimbursing any financial losses, a sum of money will be paid for the discomfort and risk assumed) or commercial (where a profit-making organisation is involved in the agreement).
The regulation of this phenomenon varies greatly between countries, even within the European Union. In England and Wales, both altruistic and compensated surrogacy is legal, although surrogacy contracts are not legally recognised and cannot be enforced.
The situation in Spain is rather unclear but, in principle, surrogacy is illegal under Article 10.1 of Act 14/2006 of 26 May on human assisted reproductive treatments: the contract whereby the pregnancy is to be carried out, with or without consideration, by a woman who renounces her filiation (legal parenthood) in favour of the counterpart or a third party will be null and void.
However, the main problem arises intended parents who are Spanish nationals enter into an agreement with a surrogate mother in a country in which commercial surrogacy is legal (such as Ukraine) and want to return to Spain with their child and register the child at the Civil Registry. On 5 October 2010, the Directorate-General of Registries and Notaries (in charge of all inscriptions and entries at the Civil Registry) issued a ruling that opened the door for the registration of these children, provided there was a judgment confirming (a) the filiation and (b) the compliance with the rights of the surrogate mother.
A recent crisis still unsolved has taken place in Ukraine because, although the Spanish Consulate was de facto registering children without a judgment (even though this was a requirement under the 2010 resolution of the Directorate-General mentioned above), they suddenly changed their position and started demanding the judgment, which has left many families in a legal limbo.
The European Court of Human Rights has also handed down some decisions along these lines, and has ruled against France in various occasions due to its refusal to register children born out of surrogacy agreements. The ECHR has repeatedly concluded that refusing to recognise the parenthood of intended parents would infringe Article 8 of the European Convention on Human Rights (the right to respect one’s private and family life).
The Spanish Supreme Court has also given more weight to the best interests of the child (that is always paramount) than to the nullity of the surrogacy agreement when assessing, for example, the intended parents’ access to benefits such as a maternity allowance. The Court has made clear the difference between declaring the agreement null and void and depriving the child from his or her rights.
However, the ongoing debate about the right to acquire legal parenthood questions this so-called integral protection of the right: does refusing to grant legal parenthood to the intended parents on the basis that surrogacy is illegal in Spain infringe the child’s rights? The positions are completely polarised at the moment between those who believe that regulating surrogacy would allow the commercialisation of women’s bodies, and those who believe that this is a deeply private matter out of the hands of the State, who should simply make sure certain legal controls are in place. Everyone should come to the table in order to find a way to close this legal vacuum.
Olalla García-Arreciado Mazarío